mean to refer to the trace by its name; for if such was his intention, (there being no other trace of the same name,) a farther description would be unnecessary, and a more particular description would be impossible. Perplexity and confusion may be introduced, but an object cannot be rendered more certain than by bestowing on it its particular and appropriate name, if that name be one of general notoriety. The court felt the force of the argument, that "the Hunter's trace," leading from Bryant's station over to the waters of Hinkston, might be understood in the same sense with the words "the Hunter's trace," or, "that hunter's trace which leads from Bryant's station over to the waters of Hinkston." Understood in that sense, the additional and explanatory part of the description might be considered as its essential part, and might control the words "the Hunter's trace," which, connected as they are in this description, are not incapable of application to other hunters' traces, though not usually designated by that particular name. If this were to be received as the true construction, there are so many other traces leading across this dividing ridge, from Bryant's station to the waters of Hinkston, that all pretension to certainty, in this location, must be surrendered. On this part of the case, the court has felt considerable difficulty; and it is not without hesitation, that it has finally adopted the opinion, that "the Hunter's trace" is to be considered as referred to by its name; and, that the additional words, "leading from Bryant's station over to the waters of Hinkston," 1816. Matson V. Hord. 1816. Matson V. Hord. are nearly an affirmation that "the Hunter's trace" does lead from that station to those waters. It leads to Stoner's fork, which empties into, or unites with, Hinkston's fork, which afterwards empties into the main Licking. These branches are, all of them, called forks of Licking, and, therefore, it would seem to the court reasonable, (as is indeed indicated by much of the testimony,) that this ridge was rather considered as dividing the waters of Elkhorn from those of Licking than from those of Hinkston. But Stoner's fork, to which this trace leads, may, without impropriety, be denominated, as it sometimes has been denominated, "the Waters of Hinkston." It cannot escape notice, that if this trace had been designated as that leading to Mastin's station, it would have been freed from all ambiguity. But it has been decided in Kentucky, and necessarily so decided, that a locator ought not to be held to the most certain description of which the place is susceptible. A description which distinguishes it from any other, although a better or still more certain description might be given, is all that is required. Having, with much difficulty, ascertained the trace, the next inquiry is, on what part of this trace the land entered by Masterson ought to lie. The location says, generally, "on the dividing ridge between the waters of Hinkston and the waters of Elkhorn." It has been objected, that neither the side of the ridge nor the side of the trace, is specified; and that, to search both sides of the ridge and of the trace, is imposing an unreasonable labour on subsequent locators. The court does not think so, The ridge is not of such breadth as to render the search on both sides the trace, from the foot of the ridge on one side, to the foot of the ridge on the other, a very unreasonable one. But the trees must be found on the ridge, and a subsequent locator is not bound to search for them elsewhere. The trees having in themselves no notoriety, it is the more necessary that the place on which they stand should be correctly described, and so described, that persons interested in discovering them, might know how to find them. Let us then examine the testimony to this point. Richard Masterson, who made the location, proves the place where the trees stood. They are now cut down, but a mulberry stump remains, which is the stump of the tree he marked, is No. 33., west three poles from a white oak, now standing. He gives no description of the place. Henry Lee was with Masterson when he marked the trees, and saw him mark them. They had been hunting on the trace on Cooper's run; and, on their return, he says, "on the aforesaid trace, or path, after crossing the dividing ridge, near a small branch waters of Elkhorn, Richard Masterson marked," &c. This testimony would rather indicate that, in the opinion of the witness, the trees did not stand on the ridge. Simon Kenton describes the crooked oak mentioned by Masterson and Jay: "it does not stand on the dividing ridge." On being further interrogated he says, "he well believes that the crooked oak stands on ground which is a spur of the dividing 1816. Matson V. Hord. 1816. Matson V. Hord. ridge which leads down to the junction of the branches," which unite a small distance below the mulberry stump. In the course of his examination, this witness says, that if he could not have found these trees on the ridge, and had found them where they stood, he should have taken them for the trees called for in Masterson's entry; but in no part of his testimony does he indicate that he would have searched for them on the spur where they stood. Zachariah Easton, the surveyor, gives a very accurate description of the place. The mulberry stump stands between two branches, three poles from the eastern, thirty poles from the western, and forty one poles from their junction. Along the trace, which crosses the branch several times, the stump is one hundred and ninety poles from the top of the ridge. The stump stands, not on the dividing ridge itself, but on a spur of the ridge, which does not continue along the trace, but takes a direction west thereof, and unites with the main ridge, as would seem from the plat, sixty or seventy poles west of the point at which the trace crosses it. Not a single witness deposes that the stump is on the ridge. No testimony has been offered to the court to induce the opinion that, in Kentucky, a spur of a ridge is considered as the ridge itself, and the contrary seems reasonable. Spurs sometimes extend for considerable distances, and are certainly distinguishable from the ridge from which they project. If, in this case, the trace had led up this spur, a subsequent 1816. spur. Taylor locator might have considered it as a continuation of The decree, therefore, dismissing the plaintiff's bill, is affirmed with costs. V. Walton. Decree affirmed. (LOCAL LAW.) TAYLOR U. WALTON AND HUNDLY. A question of fact respecting the validity of the location of a warrant for land under the laws of Kentucky. APPEAL from a decree in chancery in the circuit court of Kentucky. The cause was argued by Key for the appellants, and Talbot and Hardin for the respondents. MARSHALL, Ch. J., delivered the opinion of the March 6th. court. |